Litigation against tobacco industry - tactics and fallout Presentation by Hemant Goswami (Burning Brain Society)

1. Tobacco industry tactics –
Influence over policies –Use
of litigation as a tool

2. Litigation & Tobacco Control
Use of litigation as a means of achieving public health policy goals
Litigation can complement to a broader, comprehensive approach to
tobacco control policy making
Though it is believed that public health goals are more directly
achievable through the political process than through litigation, but
tobacco control being a dynamic public health problem with a third
party like the tobacco corporate playing a very active role in
disturbing the policies so it is now believed that the boundaries
between litigation and the politics of public health in relation to
tobacco control has blurred.
Over a period of time it has been proved that litigation in tobacco
control has indeed laid the foundation of meaningful policy changes.

3. Is the Industry Prepared?
Any Doubts???

4. Industry Preparedness - 1989

5. Is the Industry Prepared?

6. Is the Industry Prepared?
Industry strategy in 80’s
to counter second-
hand smoke issue

7. Is the Industry Scared?
That’s why the tobacco
industry is paying over 250
Billion U$ Dollars to all
50 states in USA as
damages (Settlement)
Though the industry earned some
longevity but
the industry is definitely on
way out

8. Master Settlement Agreement
Under the Master Settlement Agreement, seven
tobacco companies agreed to change the way
tobacco products are marketed and pay the states
an estimated $206 billion (+ Other Costs). The
tobacco companies also agreed to finance a $1.5
billion anti-smoking campaign, open previously
secret industry documents, and disband industry
trade groups which Attorneys General maintain
conspired to conceal damaging research from the
public.

9. The GTC Case in California
THEREFORE, default having been entered by the clerk against GTC, as requested by
Plaintiff, JUDGMENT is accordingly entered in favor of the Plaintiff and against GTC with
respect to all claims, AS FOLLOWS:
A. GTC shall, within fifteen (15) days of this Order, place into a Qualified Escrow Fund the following
amounts as such amounts are adjusted for inflation as required by California Health and Safety
Code section 104557(a)(2):
Sales during the year 2002: (25,671,900 units x $0.0136125) plus 12.97355% for inflation for a
total of $294,795.31.
Sales during the year 2003: (34,374,640 units x, $0.0167539) plus 16.3627565% for inflation
for a total of $670,133.61.
B. GTC shall, within fifteen (15) days of this Order, pay civil penalties in the amount of 300% of
the escrow amounts improperly withheld, for a total of$3,192,986.76 for knowingly violating
California Health and Safety Code section 104557(a)(2), (c), by failing to certify to the Attorney
General for the State of California that it is in compliance with California's reserve fund statute and
for knowingly failing to establish a qualified escrow fund as defined under California Health and
Safety Code section 104556(1) and knowingly failing to deposit sufficient escrow funds into a
qualified escrow fund as required under California Health and Safety Code section 104557.
C. Pursuant to Business and Professions Code section 17206, GTC shall, within fifteen (15) days from
the date of this Order, pay a penalty of$2,500.00 for each violation of Business and Professions
Code section 17200 alleged in the Third Cause of Action, for a total assessed penalty of $50,000 in
addition to the penalty specified in Paragraph C of this judgment.
D. GTC shall, within fifteen (15) days from the date of this Order, shall appoint an agent for service
of process in California (pursuant to Revenue & Taxation Code section 30165.1(f)(1) for
enforcement of this judgment and order until this judgment is satisfied, the order is obeyed and the
injunction is dissolved.
E. -------------

10. Initiating Through Litigation
SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No. 316 OF 1999
Murli S. Deora … Petitioner Versus Union of India and Others … Respondents
ORDER
Heard the learned counsel for the parties.
Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without
due process of law. Then — why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because
he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously - ‘yes’.
Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive
smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air
pollution.
The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia,
provides, “Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in
various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic
bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are
also reported to be among the ill-effects of cigarette smoking.”
Similarly, the statement of objects and reasons of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, provides, “Tobacco is universally regarded as one of
the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country.
It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost
Rs.13,500/- crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by
tobacco industry”.

11. Initiating Through Litigation
SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA
In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st
August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as
well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is
required to be prohibited. On this submission, we sought response of the Central Government. As no affidavit was filed
during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the
matter. Today also, when the matter came up for hearing, no response is filed on behalf of the Central Government.
However, learned Attorney General with all emphasis at his command submitted that appropriate order banning
smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel
appearing for other respondents also supported the same.
In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential
carcinogens, carbon monoxide, irritants, asphyxiates and smoke particles which are the cause of many diseases
including the cancer. It is alleged that three million people die every year as a result of illness related to the use of
tobacco products of which one million people belong to developing countries like India. The World Health Organisation is
stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this
organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people.
Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal
diseases to the mankind.
It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill
introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to
have passed Act No.14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service
vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places.
Learned Attorney General for India submits and all the counsel appearing for the other parties agree that considering
the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in
public places till the statutory provision is made and implemented by the legislative enactment. The persons not
indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smokers.

12. Initiating Through Litigation
SUPREME COURT ORDERS IN MURLI S. DEORA Vs. UNION OF INDIA CASE IN THE SUPREME COURT OF INDIA
Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit
smoking in public places and issue directions to the Union of India, State Governments as well as the Union Territories to take effective
steps to ensure prohibiting smoking in public places, namely:
• Auditoriums
• Hospital Buildings
• Health Institutions
• Educational Institutions
• Libraries
• Court Buildings
• Public Office
• Public Conveyances, including Railways.
Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this
order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.
We further direct the Registrar General to intimate the State Governments/Union Territories as well as the Commissioners of Police as
mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance
report in this Court within five weeks from today. Union of India shall also file its response at the earliest.
List after six weeks.
…………………………J.
(M.B. Shah)
New Delhi; ………………………….J.
November 2, 2001. (R.P. Sethi)

13. Implementation Through Litigation
The Civil Writ
Petition in 2005 filed
in Punjab and
Haryana High Court
(India) resulted in one
of the tobacco
companies dropping
the name of its
cigarette brand for
“Bravery Award”
ceremonies.
The cognizance by
the court also saw
initiation of policy
shift on tobacco
control in the
region.

14. Implementation Through
Litigation
The case of “Pictorial Warnings” in India
Despite the industries displeasure, a High Court in India
took up the case after which the Pictorial Warning
notification was issued …….. Unfortunately the Public
Interest Writ Petition was withdrawn for certain
unfortunate reasons.

15. Litigation to Fill the Gaps

16. Standard Tricks
Numer Uno
FREEDOM OF CHOICE
ARGUMENT
Counter Argument
If Freedom of Choice be an argument then it
also applies to all hard drugs too – Why limit
to Tobacco

17. Standard Tricks
Commonly Used
VIOLATION OF
FREEDOM OF EXPRESSION
Counter Argument
Right to Life a bigger right – It’s a constitutionally
protected right in all countries of the world
Glaring Example
USA – Non Ratification of FCTC by citing “First
Amendment”

18. Standard Tricks
Commonly Used
VIOLATION OF FUNDAMENTAL RIGHT
TO PROFESS ANY TRADE
Counter Argument
All trade and professions have to function within the ambit
of the law and the Government has all the powers to
restrict the trade of any good. Not only this in case of any
product harmful/deleterious to environment/health, the
Government can all together ban it.
Example
Pictorial warning case

19. Newer Tricks
Common Trick (Overt)
GETTING CONTRADICTIONS IN THE
DELEGATED LEGISLATION
(And then Challenge them in court)
Results
Such Laws get struck in the court and are found
unconstitutional/illegal as a result it makes a bad precedence
Counter-Counter Trick of the Industry
Get a Writ/Case filed in the court and let it appear to be pro-tobacco
control – The results of such writs in a way help the tobacco industry
– Example the Fire Safe Cigarettes

20. Newer Tricks
Going to International
Tribunal / Courts on Trade
Phillip Morris Case in Thailand
State of Philippines Vs. Thailand
(Even EU has joined as a party)

21. The Different Games in the
Court

22. The restriction of “depiction of
smoking”
smoking” in movies case
IN THE HIGH COURT OF DELHI AT NEW DELHI
Present: Mr. Sandeep Sethi, Sr. Adv. with Mr. Pradyuman Dubey,
Mr. C.M. Lal, Advocates for the petitioner, in WP(C) 18761/2005 and WP(C) 23716/2005.
Mr. Arvind Datar, Sr. Adv. with Mr. Nikhil Nayyar, Mr. Ankit Singhal, Advocates for the
petitioner in WP(C) 7410-11-2006.
Mr. P.P. Malhotra, Additional Solicitor Generarl with Mr. Suresh Kait,
Mr. Mukul Gupta, Advocates for Union of India.
WP(C) 18761/2005, WP(C) 23716/2005 and WP(C) 7410-11/2006
Since we have differed on the constitutional validity of the Rules of
the Cigarettes and other Tobacco Products (Prohibition of
advertisement and Regulation of Trade and Commerce, Production, Supply
and Distribution) Rules, 2004 as amended in 2005 framed under the
Cigarettes and other Tobacco Products (Prohibition of Advertisement
and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 vide our separate judgments delivered today on
7th February 2008, let this matter be placed before Hon'ble the
Chief Justice, to nominate another learned Single Judge to resolve the
difference of opinion.
Interim order to continue until further orders.
A copy of the judgments be given dasti to the learned counsel for the
parties, under the signatures of the Court Master.
MUKUL MUDGAL, J SANJIV KHANNA, J
February 07, 2008/dr

23. The “Racketeer Influenced and Corrupt
Act”
Organizations Act” Verdict
This ruling is the culmination of a lawsuit the U.S. Department of Justice filed under the civil racketeering (RICO) law on September 22, 1999, to
hold the tobacco companies legally accountable for decades of illegal and harmful practices. The trial in the case lasted from September 21,
2004, to June 9, 2005.
Judge Kessler's 1,683-page final opinion powerfully and thoroughly details the tobacco companies' unlawful activity and the devastating
consequences for our nation's health over more than 50 years.
quot;(This case) is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product
which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic
loss, and a profound burden on our national health care system. Defendants have known these facts for at least 50 years or more.
Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public,
to the Government, and to the public health community... In short, Defendants have marketed and sold their lethal products with zeal,
with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that
success exacted,quot; Judge Kessler wrote (pages 3-4 of the opinion).
Judge Kessler issued a Final Judgment and Remedies Order that:
Prohibits the tobacco companies from committing acts of racketeering in the future or making false, misleading or deceptive
statements concerning cigarettes and their health risks.
Bans terms including quot;low tar,quot; quot;light,quot; quot;ultra light,quot; quot;mild,quot; and quot;naturalquot; that have been used to mislead consumers about the
health risks of smoking and prohibit the tobacco companies from conveying any explicit or implicit health message for any
cigarette brand.
Requires the tobacco companies to make corrective statements concerning the health risks of smoking and secondhand smoke
and their deceptive practices through newspaper and television advertising, their web sites and as part of cigarette packaging.
Extends and expands current requirements that the tobacco companies make public their internal documents produced in
litigation.
Requires the tobacco companies to report marketing data annually to the government.

24. The Solution
Tobacco Companies have explored all corners of the legal
system but still………
There are limited versions of the GAME
(More or less similar across the world)
The way to beat them in their own game is to
BE BETTER PREPARED
(Understand all the versions of the legal games the industry plays)
&
BE PROACTIVE AND AGRESSIVE